The claim
Britain will be barred from a “fantastically useful” EU crime-fighting database as a result of Theresa May’s “extreme approach to Brexit”, Nick Clegg has said. Unless the UK is prepared to accept a role for the European court of justice, which governs data for the bloc, the UK will be locked out of the EU police database, the former Liberal Democrat leader argued. In a statement given to BBC Radio 4’s Today programme, the Conservatives accused Clegg of “peddling nonsense”.
What is the database?
The row is centred on the EU’s Schengen information system II, a vast database used by police across Europe to search for terrorist suspects and missing people and to check vehicle registrations and passport details. It contains information on 36,000 criminal suspects, 103,000 missing people and nearly 500,000 non-EU citizens denied entry to Europe.
The UK, which is not a member of the EU’s passport-free Schengen zone, joined the database in 2015 after negotiating a special deal. At the time, the Home Office minister James Brokenshire hailed the system as “another vital weapon in the fight against global crime and terrorism”.
Will British police be unable to use the database after Brexit?
That outcome is likely unless there is a special deal to keep the UK in. The database is an EU creation governed by the European court of justice. No country outside the Schengen zone and the EU has full access. The US and Australia have association agreements with the EU law enforcement agency, Europol, but their police cannot search the database directly.
The director of Europol, Rob Wainwright, said last year that it could take years to negotiate the “historic first” of database access for a non-Schengen, non-EU country. Wainwright, a former MI5 analyst, told the Guardian there would be massive legal complexity to devise a parallel arrangement, as well as a political challenge of getting 27 EU countries to agree.
Could a deal be done?
The UK and EU have stressed the importance of close ties on security after Brexit. Both sides have an interest, as 40% of Europol’s caseload has a British angle.
The Centre for European Reform thinktank believes a deal is possible but requires creativity – and a concession from the Conservatives on the European court of justice.
“If Britain wants to have a bespoke agreement, it would need to accept, at a minimum, partial ECJ oversight,” writes Camino Mortera-Martinez, the CER’s specialist on EU justice and home affairs policy. “There may be no precedent for a non-Schengen, non-EU country having preferential status at Europol, but this should not mean that one cannot be created.”
Julian King, the UK’s last commissioner in Brussels, has floated the idea of a new independent arbitration body to avoid the ECJ being directly involved – a suggestion also found in the EU’s Brexit negotiating guidelines. Ultimately, this body would assess rulings made by the EU court in Luxembourg.
Verdict
Nick Clegg was on solid ground in highlighting the Brexit risks to the UK’s participation in the EU police database. Both sides want police cooperation to continue, but the legal and political complexities mean nothing can be guaranteed.
